IN THE HIGH COURT OF SOUTH AFRICA, FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO Of Interest to other Judges: NO Circulate to Magistrates: NO

Case number: A204/2014

In the matter between: HENDRIK JOHANNES POTGIETER Appellant and ANNA SUSANNA LINGENFELDER Respondent CORAM: RAMPAI, J et DAFFUE, J JUDGMENT BY: DAFFUE, J HEARD ON: 17 OCTOBER 2016 DELIVERED ON: 24 NOVEMBER 2016 _________________________________________________________

I INTRODUCTION [1] A motor vehicle collision on 28 May 2010 between a truck and

trailer and a light motor vehicle (“LDV”) on the N1, south of

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Bloemfontein near the Tierpoort dam exit led to the litigation in

casu. This is an appeal against the judgment of the magistrate’s

court, Bloemfontein finding that defendant was solely responsible

for the collision.

II THE PARTIES

[2] Appellant is Mr H J Potgieter, the unsuccessful defendant in the

court a quo.

[3] Respondent is Ms A S Lingenfelder, the successful plaintiff in the

court a quo.

[4] I shall refer to the parties as in the court a quo in order to avoid

confusion.

III ORDER OF THE COURT A QUO

[5] The merits and quantum were separated and after hearing

evidence on the merits, the court a quo made the following

finding:

“Na oorweging van die getuienis, bevind die hof dat die botsing

waaroor dit in die onderhawige saak gehandel het, veroorsaak is

deur die uitsluitlike nalatigheid van die verweerder. Die teeneis word

afgewys. Uitgestel sine die vir beregting van quantum en koste.”

Hereafter the parties settled the quantum of plaintiff’s claim in the

amount of R45 200,00 together with interest thereon whereupon

the court a quo made an appropriate order and also held

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defendant liable for payment of plaintiff’s taxed or agreed party

and party costs. This order was made on 19 May 2014.

IV BRIEF SUMMARY OF THE EVIDENCE

[6] The evidence tendered will be discussed in more detail infra when

I evaluate the court a quo’s reasons and submissions by the

parties. However a brief summary of the evidence is required to

put the reader in the picture.

[7] The driver of the plaintiff’s truck was Mr L Stander (“Stander”).

He was at all relevant times followed by Mr Dennis le Roux (“Le

Roux”) who was also driving a truck. They were travelling

southwards on the N1 towards the Eastern Cape after off-loading

freight at Fouriesburg in the Eastern Free State. (The reference to

Fauresmith in certain places of the record and in the evidence of

Stander is objectively speaking incorrect. It is common cause

that plaintiff resided in the district of Fouriesburg and the goods

transported had been off-loaded on her farm.

[8] Shortly after sunset a collision occurred on the N1 just before the

Tierpoort dam off-ramp for vehicles coming from Bloemfontein.

The headlamps of the vehicles were switched on. Neither of the

two trucks driven by Stander and Le Roux respectively was at any

relevant stage in its incorrect side of the road. Defendant’s LDV,

approaching from the front and thus moving in a northern

direction towards Bloemfontein, veered to its right-hand-side,

crossed the white centre lines demarcating the middle of the road

and initially came in collision with plaintiff’s truck whereupon it

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spun out of control, hitting plaintiff’s trailer and thereafter Le

Roux’s truck. The LDV came to a standstill across the yellow line

on its incorrect side of the road. There is no conclusive proof of

an exact area of collision, not even to speak of a point of collision,

based on any real evidence and the court a quo had to rely on the

viva voce evidence of the eyewitnesses in respect of the

movement of the vehicles and the removal of debris from the road

afterwards.

[9] According to Stander the point of collision was close to the yellow

line on his correct side of the road, whilst Le Roux was uncertain

in this regard as he did not have a clear view to the front of

plaintiff’s truck. However, he was adamant that the collision

occurred in Stander’s correct side of the road and thus to the left

of the white centre lines as they were travelling. Defendant, on

the other hand, has no memory of what happened and was of no

assistance. His son, Mr Potgieter Jnr, (“Potgieter Jnr”) visited the

scene afterwards and based on his observations tried to

persuade the court that the impact and/or point of collision was in

defendant’s correct side of the road.

[10] The court a quo was satisfied that the various witnesses could be

regarded as credible and honest and Le Roux in particular made

a good impression on her. In fact, Le Roux’s evidence was

regarded to be beyond reproach by Mr Schuurman who appeared

for defendant in the court a quo and Mr Snellenburg who

appeared in the appeal on behalf of defendant before us. They

accepted that he was a good and credible witness.

5 V GROUNDS OF APPEAL

[11] Defendant relies on not less than seventeen grounds of appeal. It

is not my intention to quote these, but I shall do my best to

summarise the essential grounds of appeal. According to

defendant the court a quo erred in the following respects:

11.1 In finding that the collision occurred in the eastern side of

the road, i.e. in Stander and Le Roux’s correct side of the

road, or stated otherwise, in the lane for traffic from

Bloemfontein to Cape Town, whilst it should have found

that the collision occurred in defendant’s lane, i.e. in the

lane of traffic travelling from south to north.

11.2 In not considering material contradictions in the versions of

Stander and Le Roux and in finding that Stander was a

credible witness notwithstanding the fact that he was

contradicted by Le Roux; that Stander’s version was

improbable and overall not credible.

11.3 In not making a negative deduction insofar as plaintiff

failed to call the passengers in her truck.

11.4 In finding that Potgieter Jnr tried to reconstruct the

collision, and in doing so failed to take photographs of the

spiral oil spillage allegedly starting on defendant’s correct

side of the road and continuing to the position where

defendant’s LDV came to a standstill.

11.5 In concluding that the position of the LDV after the collision

is reconcilable with the version of Stander and Le Roux

that the collision occurred in Stander’s correct lane of

traffic.

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11.6 To find that Potgieter Jnr’s version as to the point of

collision was improbable.

11.7 To place too much emphasis on the damages caused to

the right-hand-side of the two trucks in reasoning where

the collision occurred, especially bearing in mind that Le

Roux testified that the LDV was spinning out of control in

his direction.

VI APPLICABLE LEGAL PRINCIPLES

[12] It is an established principle that where an appeal is lodged

against a trial court’s findings of fact the court of appeal must take

into account that that court was in a more favourable position than

itself to form a judgment. Even when inferences from proven

facts are in issue the court a quo may also be in a more

favourable position than the court of appeal because it is better

able to judge what is probable or improbable in the light of its

observations of witnesses who have appeared before

it. Therefore if there are no misdirections on fact a court of

appeal assumes that the court a quo’s findings are correct and

will accept these findings unless it is convinced that these are

wrong. See R v Dhlumayo and Another 1948 (2) SA 677 (AD)

at 705 to 706. Therefore in order to interfere with the court a

quo’s judgment it has to be established that there were

misdirections of fact, either where reasons on their face are

unsatisfactory or where the record shows them to be such. See

also S v Monyane and Others 2008 (1) SACR 543 (SCA) at

para [15] where the SCA stated that it is only in exceptional cases

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that it would be entitled to interfere with the trial court’s evaluation

of oral evidence.

[13] I accept that the advantages which a trial court enjoys should not

be over-emphasised “lest the appellant’s right to appeal becomes

illusionary”, as mentioned in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at para [79] and the CC continued to

state that the truthfulness or untruthfulness of a witness can rarely

be determined by considering demeanour alone without regard to

other factors including, especially, the probabilities.

[14] Stander was criticised for making contradictory and improbable

estimates. This is not an unusual feature when the evidence of

eyewitnesses is considered. In motor vehicle collision cases the

respective drivers and eyewitness are without exception

requested to estimate aspects such as speed, duration and

distance. It is obviously necessary to obtain clarification from

witnesses, but there can be no doubt that it is notoriously difficult

for anyone to make accurate estimates in the proverbial split

second and/or in the agony of the moment. See Olivier v Rondalia Versekeringsmaatskappy Van SA Bpk 1979 (3) SA

20 (AD) at 26-27 and Rodrigues v SA Mutual and General Insurance 1981 (2) SA 274 (AD) at 279 and 280. A strictly

mathematical approach, although undoubtedly very useful as a

check, can rarely be applied as an absolute test in collision cases

since any mathematical calculation depends on exact positions

and speeds whereas in truth these are merely estimates almost

invariably made under circumstances wholly unfavourable to

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accuracy. See Van der Westhuizen v SA Liberal Insurance Co

1949 (3) SA 160 (C) at 168 quoted with approval in Diale v Commercial Union Assurance Co of SA Ltd 1975 (4) SA 572

(AD) at 577A.

[15] I wish to quote the following from Cooper, Delictual Liability in

Motor Law, 1996 ed, vol 2 at 471, relying inter alia on President Insurance v Tshabalala 1981 (1) SA 1016 (A), Kapp v Protea Ass 1981 (3) SA 168 (A) and Marine & Trade Ins v Van der Schyff 1972 (1) SA 26 (A):

“In a civil case a court is obliged to determine all issues on

a balance of probabilities. If on the totality of the facts, and

after making due allowance for the risk of error, the court is

satisfied on a balance of probabilities of the reliability of the

estimates, there is no reason why it should not adopt a

‘mathematical’ approach, not merely as a ‘useful check’

but to determine the negligence issue. The many reported

judgments in collision cases reflect the important role this

line of reasoning plays in the determination of the

negligence issue.”

[16] It is necessary to mention aspects in respect of reaction time,

taking into consideration the estimates provided by Stander in

particular. Reaction time, that is the time that a driver takes to

respond to any adversity, differs from person to person and

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experts make provision for different reaction times when

reconstructing collision scenes. Reaction time of the normal

person ranges between 1 and 1.5 second. See Rodrigues supra

at 279G where the reaction time was accepted as 1.5 second and

Road Accident Fund v Grobler 2007 (6) SA 230 (SCA) where

the expert allowed for reaction time of about 1 second. See

footnote 1 on page 233 of the judgment.

[17] The court a quo was in reality not confronted with two mutually

destructive and incompatible versions as is generally the case in

especially motor vehicle collisions, but in order to evaluate its

reasons I shall take cognisance of the dictum of Cooper quoted

supra, but also adopt the reasoning of Nienaber JA in SFW Group Ltd and Another v Martell Et Cie and Others 2003 (1)

SA 11 (SCA). I quote from paragraphs 5 and 34:

“[5] The technique generally employed by courts in resolving

factual disputes of this nature may conveniently be summarised

as follows. To come to a conclusion on the disputed issues a

court must make findings on (a) the credibility of the various

factual witnesses; (b) their reliability; and (c) the probabilities.

As to (a), the court's finding on the credibility of a particular

witness will depend on its impression about the veracity of the

witness. That in turn will depend on a variety of subsidiary

factors, not necessarily in order of importance, such as (i) the

witness' candour and demeanour in the witness-box, (ii) his

bias, latent and blatant, (iii) internal contradictions in his

evidence, (iv) external contradictions with what was pleaded or

put on his behalf, or with established fact or with his own

extracurial statements or actions, (v) the probability or

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improbability of particular aspects of his version, (vi) the calibre

and cogency of his performance compared to that of other

witnesses testifying about the same incident or events. As

to (b), a witness' reliability will depend, apart from the factors

mentioned under (a)(ii), (iv) and (v) above, on (i) the

opportunities he had to experience or observe the event in

question and (ii) the quality, integrity and independence of his

recall thereof. As to (c), this necessitates an analysis and

evaluation of the probability or improbability of each party's

version on each of the disputed issues. In the light of its

assessment of (a), (b) and (c) the court will then, as a final

step, determine whether the party burdened with the onus of

proof has succeeded in discharging it. The hard case, which

will doubtless be the rare one, occurs when a court's credibility

findings compel it in one direction and its evaluation of the

general probabilities in another. The more convincing the

former, the less convincing will be the latter. But when all

factors are equipoised probabilities prevail.”

“[34] In assessing the probabilities, phase by phase as events

unfolded, as well as comprehensively and in retrospect, the

conclusion seems to me to be inescapable that of the two

versions before Court as to what the parties agreed to, SFW's

is the more probable. That being so, Seagrams has not

succeeded in discharging the onus which it assumed for itself

in suing for a declaratory order. It further follows that SFW's

appeal must succeed.”

[18] No expert witness testified in casu, but in light of certain

deductions that were either made by Potgieter Jnr, or suggested

by him should be made, I deem it apposite to mention the

following. Experts are frequently called in to assist our courts, but

courts are not bound by the opinion of an expert. An expert must

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be called as a witness on matters calling for specialised

knowledge. It is the duty of the expert to furnish the court with the

necessary scientific criteria for testing the accuracy of the expert’s

conclusions so as to enable it to form an independent judgment

by the application of these criteria to the facts proved in

evidence. See Coopers (South Africa) (Pty( Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung MBH 1976 (3) SA

352 (A) at 370H – 372A. In the evaluation of the evidence of

experts it is required to determine whether and to what extent

their opinions advanced are founded on logical reasoning. See

Michael and another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at para [36].

[19] In Mapota v Santam Versekerings Maatskappy Bpk 1977 (4)

SA 515 (AD) at 527H Potgieter JA commented as follows:

“Dit is egter welbekend … dat direkte geloofbare getuienis dikwels

aanvaar kan word al sou daardie getuienis indruis teen

waarskynlikhede wat voortspruit uit menslike ervaring of

wetenskaplike menings. In die onderhawige geval sou, na my

oordeel, die wetenskaplike mediese getuienis slegs die sterk en

andersins aanvaarbare en gestaafde getuienis van appellant kan

ontsenu indien daardie getuienis onteenseglik getoon het dat die

redelike moontlikheid dat die ongeluk kon plaasgevind het soos deur

appellant beskryf is, nie bestaan nie.”

[20] In Stacey v Kent 1995 (3) SA 344 (ECD), the full bench of the

Eastern Cape Division considered several dicta from a number of

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judgments dealing with the manner in which expert evidence

should be considered and concluded as follows at 350G-I:

“As pointed out in the authorities cited above, it is the duty of experts

to furnish the Court with the necessary criteria for testing the

accuracy of their conclusions, so as to enable the Court to form its

own independent judgment by the application of those criteria to the

facts proved in evidence. The mere pitting of one hypothesis against

another does not constitute the discharge of the functions of an

expert. The Court should also be on its guard against any tendency

on the part of expert witnesses to be biased in favour of the side

which calls them and an unwarranted readiness to elevate harmless

or neutral facts to confirmation of preconceived theories or to dismiss

facts supporting an opposing conclusion.”

[21] Bearing in mind the quoted dicta, direct and credible evidence of

what happened in a motor vehicle collision often carry greater

weight then the opinion of an expert who had to reconstruct the

event from his experience and scientific training. It is only where

the direct evidence is so improbable that its reliability is impugned

that an expert’s opinion of what may have occurred should

prevail. Having said this, in the final result a decision must be

reached on the evidence as a whole. In casu the court a quo had

to consider the evidence of a lay witness who was not qualified to

give any opinion at all as to how the collision occurred.

13 VII EVALUATION OF THE COURT A QUO’S REASONS AND

SUBMISSIONS BY THE PARTIES

[22] It must be mentioned at the onset that Stander testified two years

and nine months and Le Roux and all other witnesses three and a

half years after the collision. Clearly their memories, especially

pertaining to details that cross-examiners often try to extract from

witnesses, would have faded.

[23] As mentioned above everybody concerned, i.e. the presiding

magistrate, Mr Schuurman, the attorney for defendant who cross-

examined Le Roux, as well as Mr Snellenburg who appeared for

defendant on appeal before us, were satisfied that Le Roux was a

credible witness. Mr Schuurman called Le Roux “a very honest

witness” and Mr Snellenburg agreed during oral argument that he

was “not questionable”, that he made a “good overall impression” who

gave “a fair indication of what happened.” That being the case, it

should really be the end of the appeal. Although I agree that Le

Roux was a credible and also reliable witness, I am also mindful

of the fact that he was no doubt uncertain about some aspects as

will be shown infra.

[24] Le Roux was adamant, notwithstanding the fact that he could not

see exactly where and how the plaintiff’s truck and the LDV

collided with each other, that the plaintiff’s truck was at all

relevant times in its correct lane of travel. Mr Snellenburg tried to

persuade us based on three passages in Le Roux’s cross-

examination that he made a material concession. The first

passage read as follows: “Is it possible for you to inform the Court in

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connection with the middle of the road where approximately was the impact

between the two vehicles, how far was it from the solid middle, the solid line

in the middle of the road? Would you say it was almost in the middle of the

road or can you help us with that? ….. I am not sure.” A bit further the

following passage appears: “Now his version (Stander’s) is that prior

to the impact stage he actually left, moved into the yellow area line on the

left hand side of the road to avoid an accident from taking place and you say

you disagree. That is not how it happened……..Basically sir all I can

remember is the hopping, the hopping. From the hopping until where Mr

Stander’s vehicle came to a standstill. That is all I, I can basically keep,

remember. But before the hopping I cannot tell you yes he did veer off to the

yellow line or he tried to swerve out. I, I will not be able to tell you that.”

The third and more important passage relied on is the following: “Can you tell the Court in relation to the middle of the road where the impact

between the two vehicles were (sic), the point of accident? Would you say it

was very much in the middle of the road?.... Basically in the middle of the

lane yes.

In the middle of?..... The lane. The lane you were travelling in?.... Yes. Oh it is, it is it is actually difficult to

say because of my following distance and the light, it was becoming dark so

I would not be able to tell you it was in the middle of our lane or in the middle

of the, the road on the white line or on the yellow side of the line or

[indistinct].” (my underlining).

[25] It must be remembered that the right front parts of plaintiff’s truck

and the LDV were damaged as is apparent from the photographs

and in particular the LDV that was not damaged from the middle

to the left front. We are thus not dealing with a full frontal head-

on collision. If Plaintiff’s truck was travelling less than a metre

from the white centre lines, it would not be wrong to conclude that

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impact occurred approximately in the middle of the road.

However Le Roux was uncertain and rightly so. It could not have

expected of him to indicate a point of collision as requested.

[26] The fact that Stander and Le Roux contradicted each other

pertaining to the exact moment when plaintiff’s truck started to

move to the left and eventually entered the slipway to the

Tierpoort dam and whether or not Stander applied the brakes of

plaintiff’s vehicle, must be seen in proper context. Le Roux stated

that plaintiff’s truck was at the moment of impact travelling

normally in its lane whilst Stander testified that he had moved to

the left and also applied brakes just prior to the collision.

However the passages quoted indicate that Le Roux was

uncertain of himself which is quite acceptable in the

circumstances.

[27] According to the objective and common cause evidence Stander

moved to his left and even exited the N1 by taking the slipway.

Collisions do not occur in slow motion, but often in split-seconds.

As mentioned supra it is extremely difficult for people to give

exact accounts of what happened prior to and during a collision

and in what sequence; also what measures, if any, were taken to

avoid the collision. An armchair approach should be avoided in

evaluating such evidence.

[28] One may even speculate that Le Roux, travelling right behind

Stander, might have been mistaken (in fact, he conceded being

uncertain as shown supra) and that plaintiff’s truck started to

move to the left prior to the collision, but it is also possible that

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Stander was merely mistaken when he testified that he was so far

to the left of the road at the point of impact as testified. Fact is

that he at a stage moved to the left and also applied brakes to

come to a standstill. Le Roux was also uncertain, contrary to

Stander’s version that he applied brakes before impact, as to

whether Stander did so before impact. Speculation aside, the

obvious contradictions between the two versions must be seen in

proper context, but in any event does not assist defendant’s case

at all. The different versions are rather indicative of a lack of

collusion. The court a quo received direct and credible evidence

pertaining to the events leading to the collision and what actually

happened. That evidence supported plaintiff’s case 100%.

[29] It is obvious that Stander has no idea of the duration of 2 or 3

minutes as testified in examination-in-chief or a minute or a

minute and a half as suggested in cross-examination, being the

time it took for the collision to happen since the LDV crossed the

solid white lines. He tried to explain his difficulty by saying that

the collision occurred more than two years earlier. A simple

mathematical calculation would inform us that, at a combined

speed of 120 km/h it would take about 1.5 second to travel the

fifty metres estimated by him. This is a far cry from any of his

estimates and if his estimate of the distance could be accepted

which is doubtful in light of the moving vehicles, relative darkness

and suddenness of the event, he would not have time to react

based on the generally accepted reaction time referred to supra.

However, it would be wrong to reject his whole version as untrue

or improbable as he made an obvious innocent mistake about

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duration and possibly even in respect of distance as is often

found in similar cases.

[30] Mr Snellenburg submitted that a negative deduction should have

been made in respect of plaintiff’s failure to call anyone of the two

passengers who were travelling in plaintiff’s truck. In my view

there was no compelling reason to make such a deduction. Le

Roux’s evidence, he being independent, was damning for

defendant’s case. Although he could not testify whether the

headlamps of plaintiff’s truck were in proper working condition,

there is no reason not to accept Stander’s version. Defendant

could not really tell that the lights were on bright and the best he

could do was to mention that he was blinded. This issue is to my

mind in any event irrelevant, bearing in mind the aspects referred

to infra.

[31] Mr Snellenburg submitted that the court a quo was guilty of

applying double standards. Potgieter Jnr was blamed for not

photographing the spiral oil spillage, but Stander escaped blame

although he did not photograph the oil patch testified about. Fact

is that Stander did not take any photographs at all while Potgieter

Jnr tried to collect evidence that the plaintiff’s truck was not

roadworthy and also in respect of the damage caused to the

vehicles. He took some twelve photos, but failed to take a

photograph of the oil spillage which he believed was vital

evidence. Counsel’s submission is not acceptable.

[32] Defendant has no recollection of the collision. He cannot blame

Stander for the collision even though he tried to persuade the

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court a quo that the headlamps of plaintiff’s vehicle were on bright

and that he was blinded as a result. On his own version he

reduced speed even more, bearing in mind that he was travelling

at the very low speed of 40km/h when entering the N1 where the

speed limit is 120 km/h and simultaneously moved to his left to

avoid the so-called danger caused by bright headlamps of the

truck. On his version there should have been a collision on the

western side of the lane in which he was travelling, far across the

white centre lines and clearly in Stander’s incorrect lane. The

court a quo could not make such a finding bearing in mind the

direct credible evidence of Le Roux, substantially supported by

Stander.

[33] The aspect about the alleged blinding caused by bright headlamps

is a non-starter, firstly because defendant was not blinded to such

an extent that he moved into his incorrect side of the road and

right in front of plaintiff’s truck; secondly because it was never

defendant’s case on the pleadings that plaintiff’s driver failed to

switch the headlamps to dim at the appropriate time; and thirdly

because defendant specifically relied on the headlamps being

defective as one of the alleged causes of negligence, of which

there is no acceptable evidence.

[34] Potgieter Jnr arrived at the scene afterwards. It was dark by then.

He made observations and even took photographs. He is not an

expert in respect of motor vehicle collision reconstruction matters

and any opinions that he might have submitted should and could

have been regarded as inadmissible evidence. A matter that

caused me concern when reading Mr Schuurman’s cross-

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examination of Stander is that it was put to him that according to

his instructions the collision had occurred in defendant’s lane of

traffic; yet no evidence was tendered in support of this apparent

unfounded statement. The closest defendant came to such

evidence is the inadmissible version of his son. The spiral oil

spillage allegedly starting on defendant’s correct side of the road

and continuing until the position of the stationary LDV could not

take the matter any further even if his version in this regard could

be regarded as reliable and credible. The first problem is that he

failed to take photographs of the oil spillage although he was

extremely keen to show that plaintiff’s truck was not roadworthy,

bearing in mind the photographs of the windscreen trying to show

the absence of a valid licence and roadworthiness certificate.

Secondly, and on acceptance that the oil spillage came from the

LDV, there is absolutely no expert evidence as to how long it

would take for oil to be deposited on the tarmac after a collision

and damages of a similar nature caused to the LDV, and

furthermore how far from the actual point of collision the oil would

be spilled for the first time, bearing in mind that the LDV was

spinning out of control as testified by Le Roux, an aspect correctly

conceded by the lay witness, Potgieter Jnr. Finally, the version of

Potgieter Jnr is contradicted by Stander who conceded that spiral

oil spillage was found but only in his correct lane of travel.

Potgieter Jnr was obviously not an independent witness and his

suggestion in cross-examination that the point of impact was in

defendant’s correct lane is indicative of his bias towards his

father.

20 [35] Potgieter Jnr’s excuse for not taking photographs of the oil spillage

does not hold water. If he believed that the SAPS personnel

would take all relevant photographs at the scene, as he wanted

the court a quo to accept, there would be no reason to take a total

number of twelve less significant photographs, but not a single

one of a crucial piece of evidence such as fresh oil spillage on his

father‘s correct side of the road. The omission was telling against

his version.

[36] There is no reason not to accept Stander’s evidence pertaining to

the correct working condition of the headlamps of plaintiff’s truck.

It is clear that defendant had to find an excuse for the collision

and one such excuse might be that he was so blinded by the

bright lights of the oncoming truck that he lost all sense of position

and direction and that this caused him to veer into the incorrect

side of the road, causing the collision. This would have been an

issue for discussion amongst his family members and with

Potgieter Jnr in particular, prompting him to testify as he did. In

my view, even if it is found that the headlamps of the plaintiff’s

truck were on bright, this could not have contributed to the

collision bearing in mind defendant’s own evidence.

[37] As mentioned the court a quo received one direct version only as

to how the collision occurred. However I shall briefly consider the

principles set out in SFW supra. The court a quo observed the

witnesses and was satisfied with their inherent credibility. She

was mindful of the differences in the versions of Stander and Le

Roux, but stated quite logically that no two witnesses will provide

exactly the same description of a collision which happens in a

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split second. There is no reason to reject the evaluation. The

court a quo’s criticism of Potgieter Jnr’s failure to take

photographs of the oil spillage, even the next day when he visited

the scene again in broad day light with his mother, is

understandable and cannot be regarded as an application of

double standards. The observations of plaintiff’s witnesses,

notwithstanding differences as mentioned, are reliable and

supported by the probabilities. Finally, the probabilities favour the

plaintiff’s version, bearing in mind the nature and extent of the

damage to the vehicles – mainly the front right and right-hand-

side – the spinning out of control of the LDV which also collided

with plaintiff’s trailer and Le Roux’s vehicle, the position of the

vehicles after the collision as well as the debris and other articles

which came off the LDV. It is highly improbable that Stander

could have veered across the white centre lines, causing a

collision in defendant’s correct lane and be able to return to the

left in order to exit the N1 as he did. One would have expected

the LDV to be pushed off the road to the western side in such a

case without it colliding with Le Roux’s truck, but quite the

opposite transpired.

[38] There is no merit in any of the grounds of appeal or in the

submissions on behalf of defendant presented to us.

Consequently I am satisfied that, in evaluating the evidence

based on the principles set out in SFW supra, plaintiff’s witnesses

were reliable and credible and above all, the version put forward

on behalf of plaintiff is far more probable than the version feebly

put forward by defendant.

22 VIII CONCLUSION

[39] In conclusion I am satisfied that the court a quo’s judgment and

reasons for the orders granted are beyond reproach and therefore

the appeal falls to be dismissed.

IX ORDER [40] The appeal is dismissed with costs.

_____________ J. P. DAFFUE, J

I concur.

______________ M. H. RAMPAI, J

On behalf of appellant: Adv. N. Snellenburg Instructed by: Hill, McHardy & Herbst BLOEMFONTEIN On behalf of respondent: Adv. J. Johnson Instructed by: Honey Attorneys BLOEMFONTEIN /EB